UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

LONNY BRISTOW,

Plaintiff,

Civil Action 2:11-cv-00883

v. Judge Peter C. Economus

Magistrate Judge E.A. Preston Deavers

THOMAS AUSTIN STOUT, et al.,

 

Defendants.

ORDER AND REPORT AND RECOMMENDATION

This matter is before the Court for an initial screen of the Complaint pursuant to 28

U.S.C. §§ 1915(e)(2). Plaintiff, who is proceeding pro se, brings this 42 U.S.C. § 1983 action

against various state officials, alleging that Defendants retaliated against him for exercising his

First Amendment rights. At this juncture, the Court will allow Plaintiff to proceed on his

retaliation claims against Defendant Thomas Austin Stout. It is RECOMMENDED that the

Court DISMISS Plaintiff’s claims against the remaining Defendants for failure to state a claim.

I.

Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to

“lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992). 

In doing so, however, “Congress recognized that ‘a litigant whose filing fees and court costs are

assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from

filing frivolous, malicious, or repetitive lawsuits.’” Id. at 31 (quoting Neitzke v. Williams, 490

U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e)1

 as part of the

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Formerly 28 U.S.C. § 1915(d). 

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statute, which provides in pertinent part:

(2) Notwithstanding any filing fee, or any portion thereof, that may have been

paid, the court shall dismiss the case at any time if the court determines that-- 

***

(B) the action or appeal--

 (i) is frivolous or malicious; 

(ii) fails to state a claim on which relief may be granted; or

(iii) seeks monetary relief against a defendant who is immune from

such relief.

28 U.S.C. § 1915(e)(2)(B); Denton, 504 U.S. at 31. Thus, § 1915(e) requires sua sponte

dismissal of an action upon the Court’s determination that the action is frivolous or malicious, or

upon determination that the action fails to state a claim upon which relief may be granted. 

To properly state a claim upon which relief may be granted, a plaintiff must satisfy the

basic federal pleading requirements set forth in Fed. R. Civ. P. 8(a). See also Hill v. Lappin, 630

F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure 12(b)(6) standards

to review under 28 U.S.C. § 1915(e)(2)(B)(ii)). Although this pleading standard does not require

“‘detailed factual allegations,’ . . . [a] pleading that offers ‘labels and conclusions’ or ‘a

formulaic recitation of the elements of a cause of action,’” is insufficient. Ashcroft v. Iqbal, 566

U.S. 662, ---, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 555 (2007)). Furthermore, a complaint will not “suffice if it tenders ‘naked assertion[s]’

devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557). Instead, to

survive a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules

of Civil Procedure, “a complaint must contain sufficient factual matter . . . to ‘state a claim to

relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility

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is established “when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Id.; see also New

Albany Tractor, Inc. v. Louisville Tractor, Inc., 650 F.3d 1046, 1051 (6th Cir. 2011) (holding,

pursuant to Iqbal and Twombly, that a plaintiff must allege sufficiently specific facts to state a

facially plausible claim even if such facts are in the hands of the defendants).

II.

In order to establish a retaliation claim, a plaintiff must prove:

(1) that there was constitutionally-protected conduct; (2) an adverse action by

defendants sufficient to deter a person of ordinary firmness from continuing to

engage in that conduct; and (3) a causal connection between the first and second

elements—that is, the adverse action was motivated at least in part by plaintiff’s

protected conduct.

Eckerman v. Tennessee Dept. of Safety, 636 F.3d 202, 207 (6th Cir. 2010). To demonstrate a

causal connection under the third prong, a plaintiff may rely on “direct or circumstantial

evidence indicating that the protected conduct was a substantial or motivating factor behind the

adverse action . . . .” Id. at 208. At the pleading stage, however, Plaintiff must present “more

than unadorned allegations concerning Defendants’ intent and motivation.” Center for

Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 377 (6th Cir. 2011).

“It is axiomatic that the liability of persons sued in their individual capacities under

section 1983 must be gauged in terms of their own actions.” Leavitt v. Corr. Med. Servs., Inc.,

645 F.3d 484, 502 (1st Cir. 2011) (internal quotations omitted). Consequently, as one district

court has noted in the retaliation context:

Since the alleged wrong here—retaliation for the exercise of protected rights—is

grounded in defendants’ wrongful intent, it is not enough simply to show that

defendants performed some acts that may have contributed to the harm suffered

by plaintiffs. Plaintiffs must show that each defendant acted for constitutionally

impermissible motives—specifically, in this case, for retaliatory reasons, or at

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least with an eye toward knowingly advancing others’ retaliatory goals. See, e.g.,

Becker v. Kroll, No. 2:02–CV–24, 2009 WL 819373, at *7–*9 (D.Utah Mar. 26,

2009) (stating that “[i]ndividual liability under 42 U.S.C. § 1983, must be based

upon personal participation of the individual in the alleged constitutional

violation,” and proceeding to analyze whether there was evidence of retaliatory

motive by each defendant); Lopez v. Cook, No. S–03–1605, 2008 WL 111021, at

*6 (E.D.Cal. Jan.9, 2008) (“To prevail on his retaliation claims, plaintiff must

prove that he was retaliated against for exercising his First Amendment rights and

that retaliation was a substantial or motivating factor for the acts or conduct of

each defendant”) (citing Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274,

285–87, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977)).

Beechwood Restorative Care Ctr v. Leeds, --- F.Supp.2d ----, 2011 WL 4014310, at *19

(W.D.N.Y. Sept. 12, 2011); cf. also Wright v. Vill. of Franklin Park, No. 05 C 3696, 2008 WL

820560, at *27 (N.D. Ill. Mar. 25, 2008) (rejecting retaliation claims against two subordinates,

based on “acquiescing and/or agreeing” with the decision of a superior, in part because the

plaintiff “offer[ed] no evidence suggesting that any of these defendants harbored hostility

towards him based on his protected expression”).

III.

In his Complaint, Plaintiff attempts to bring claims against all Defendants, in their

individual capacities, for retaliation based on Plaintiff’s exercise of his First Amendment rights. 

Plaintiff maintains that he has a long history of litigation against both the Ohio Department of

Rehabilitation (“ODRC”) and Defendant Thomas Austin Stout, legal counsel for the ODRC. 

According to Plaintiff, this litigation has led to an unfriendly relationship between himself and

Defendant Stout. Plaintiff has made a variety of public record requests from ODRC facilities. 

Plaintiff maintains that Defendants have resisted and “slow walked” his public record requests. 

Consequently, Plaintiff called and emailed the various institutions to raise objections to the

handling of his public record requests. Additionally, Plaintiff has filed mandamus petitions

relating to his public records requests. See Ohio Rev. Code § 149.43(C) (allowing a person

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aggrieved during the public record request process to commence a mandamus action). 

Plaintiff submits that in light of his phone calls, emails, and mandamus actions,

Defendant Stout directed all remaining Defendants to treat all of Plaintiff’s public records

requests in the aggregate and assess costs accordingly; to not allow Plaintiff to review requested

public records in the institutions where they are maintained; and to cease communication with

Plaintiff. Plaintiff asserts that the remaining Defendants, all Public Record Coordinators for

various ODRC institutions, have conspired with Defendant Stout by following his directives. He

maintains that the remaining Defendants cannot rely on Defendant Stout’s instructions to shield

them from liability because their actions are against ODRC policy. 

The Court finds that Plaintiff has failed to plead facially plausible claims against the

Defendants outside of Defendant Stout. To state a claim against these remaining Defendants,

Plaintiff cannot rely on conclusory allegations that the remaining Defendants acted in conspiracy

with Defendant Stout or that they knew they were assisting Defendant Stout. Rather, Plaintiff

must establish that each Defendant acted for constitutionally impermissible motives, namely, to

retaliate against Plaintiff for engaging in protected conduct. Here, even assuming Plaintiff has

pled sufficient facts to meet the first two prongs of a retaliation claim, he has not pled sufficient

facts to provide a reasonable inference that the remaining Defendants acted because of Plaintiff’s

protected activity. In other words, the facts do not demonstrate that the remaining Defendants’

actions were motivated by Plaintiff’s phone calls, emails, and mandamus actions. Instead, the

facts Plaintiff pleads indicate that these Defendants, as employees of the ODRC, were simply

following the directives of Defendant Stout, the ODRC’s legal counsel. Consequently, even

assuming that Defendant Stout’s directives are contrary to ODRC policy or that Defendant Stout

did not have sufficient authority to issue these directives, Plaintiff has still failed to sufficiently

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plead that the remaining Defendants acted with retaliatory motives.

IV.

Based on the foregoing, at this time, the Court will allow Plaintiff to proceed on his

retaliation claims against Defendant Thomas Austin Stout. It is RECOMMENDED, however,

that the Court dismiss the remaining Defendants for failure to state a facially plausible claim. 

The United States Marshal is DIRECTED to serve by certified mail upon Defendant

Stout a summons, a copy of the Complaint. Defendant Stout is ORDERED to answer or

otherwise respond to the Complaint within 45 days after being served with a copy of the

Complaint and summons. 

V.

If any party seeks review by the District Judge of this Report and Recommendation, that

party may, within fourteen (14) days, file and serve on all parties objections to the Report and

Recommendation, specifically designating this Report and Recommendation, and the part in

question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). 

Response to objections must be filed within fourteen (14) days after being served with a copy.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object to the Report and

Recommendation will result in a waiver of the right to de novo review by the District Judge and

waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex

Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate

judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district

court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that

defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to

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magistrate judge’s report and recommendation). Even when timely objections are filed,

appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d

981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to

specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation

omitted)).

IT IS SO ORDERED.

Date: November 7, 2011 /s/ Elizabeth A. Preston Deavers 

 Elizabeth A. Preston Deavers

 United States Magistrate Judge

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